Czajkowski v. YMCA of Metropolitan Hartford, Inc. , 149 Conn. App. 436 ( 2014 )

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FRANK CZAJKOWSKI ET AL. v. YMCA OF
METROPOLITAN HARTFORD, INC.
(AC 35085)
Lavine, Sheldon and Pellegrino, Js.
Argued January 9—officially released April 15, 2014
(Appeal from Superior Court, judicial district of
Ansonia-Milford, Doherty, J.)
Alinor C. Sterling, with whom were, Cynthia C. Bott,
and, on the brief, David M. Bernard and J. Craig Smith,
for the appellants (plaintiffs).
Michael T. Ryan, with whom, on the brief, was Maciej
A. Piatkowski, for the appellee (defendant).
Opinion
PELLEGRINO, J. In this action for damages for per-
sonal injuries, the plaintiff Frank Czajkowski1 appeals
from the judgment of the trial court rendered after a jury
verdict in favor of the defendant, YMCA of Metropolitan
Hartford, Inc., doing business as YMCA of Greater Hart-
ford. The plaintiff claims that the court improperly (1)
precluded the testimony of his expert witness, and (2)
permitted the defendant’s lay witness to testify as to
her opinion.2 We conclude that the court did not abuse
its discretion by precluding the expert’s testimony or
by admitting the lay witness’s testimony. We therefore
affirm the judgment of the court.
The jury reasonably could have found the following
facts. From April 25, 2005, to April 27, 2005, groups of
eighth grade students from Derby and Hartford
attended an overnight outing at Camp Jewell, a camp-
ground in Colebrook owned by the defendant. On the
second day of the outing, April 26, the plaintiff, who
was fourteen years old, had congregated with other
students outside of the dining hall after lunch. The stu-
dents were waiting to be sent to their next activity. The
area where the plaintiff stood was enclosed by a split
rail fence. Near the intersection of two sides of the
fence was a stone engraved with the word ‘‘unless’’
(unless stone) which, in the spring and summer, is sur-
rounded by flowers.3 The portion of the fence sur-
rounding the unless stone was approximately eighteen
inches high. On the other side of the fence was a path
that led to ‘‘Mount Wood,’’ a climbing tower. Raymond
Zetye, the executive director of Camp Jewell, testified
that the purpose of the fence was to prevent people
from walking on the flowers that grow around the
unless stone.
After all of the students in the plaintiff’s group had
gathered in the vicinity of the unless stone, a camp
counselor said that the group was going down the path
to Mount Wood. In order to do so, the students, includ-
ing the plaintiff, had to maneuver around the fence to
reach the path that led to Mount Wood. Some students
walked around the fence, while others either stepped
or jumped over it. The plaintiff elected to jump over
the fence but did not clear the top rail and, as a result,
fell and struck his head on the ground. The plaintiff
brought the present action seeking to hold the defen-
dant liable for his injuries.4 The matter was tried to a
jury, which returned a verdict in favor of the defendant.
This appeal followed. Additional facts will be set forth
as necessary.
I
The plaintiff asserts that the court improperly pre-
cluded his expert witness from testifying. The plaintiff’s
expert, Anthony Storace, has a master’s degree in
mechanical engineering, and was experienced in acci-
dent investigation and reconstruction. Storace visited
the site of the plaintiff’s fall, conducted an investigation,
and produced a report detailing his findings. The report
described the fence in question: ‘‘The subject fence
provides a pedestrian barrier intended to prevent pedes-
trians from walking from [the area of the unless stone to
the surrounding paths]. . . . The fence was apparently
provided to prevent pedestrians from traversing the
raised edges of the walkway step, which presents a
tripping hazard. . . . Although the fence may have
been provided to divert pedestrian traffic, the design
of the area and the height of the fence created a condi-
tion in which it was foreseeable that pedestrians would
surmount the fence, either by climbing or jumping. A
fence intended as a barrier to pedestrian traffic should
be at a height appropriate for such purpose.’’ The report
then referenced several building codes which direct
that ‘‘guards,’’ defined as barriers used to prevent falls,
should be at least forty-two inches high.5 On the basis
of the information in the report Storace concluded that
the subject fence, because it was being used to prevent
pedestrians from tripping on the ‘‘raised edges’’ of the
path, was a ‘‘guard’’ that should have been forty-two
inches high.
The defendant filed a motion in limine to preclude
Storace’s testimony, arguing that the testimony was not
helpful to the jury because it was based on irrelevant
building codes and the subject matter of the testimony
was within the knowledge of the average person. The
court granted the motion to preclude and, thereafter,
the jury found in favor of the defendant. The plaintiff
filed a motion to set aside the verdict, arguing that
Storace should have been allowed to testify on the basis
of his experience and the building code requirements
that the fence was unsafe. The court subsequently
denied the plaintiff’s motion. In doing so, the court
recounted the concession Storace had made in the
plaintiff’s expert disclosure statement that his opinion
was based on codes governing a building’s interior
‘‘guards,’’ and that these codes do not directly apply to
the fence at issue. The court determined that the build-
ing codes were irrelevant because they do not apply
to the fence and, furthermore, found that the average
person possessed sufficient knowledge to determine
whether the fence at issue was unreasonably danger-
ous. On appeal, the plaintiff argues that the building
codes are relevant to determining whether the fence
was safe, and therefore whether the fence was unrea-
sonably dangerous is beyond the knowledge of the aver-
age juror who is not familiar with the building code
standards. As a result, the plaintiff reasons, the court
improperly precluded Storace’s testimony. We are
not persuaded.
‘‘We begin our review of this issue by setting forth
the well established standard of review regarding a trial
court’s ruling on the admissibility of expert testimony.
[T]he trial court has wide discretion in ruling on the
admissibility of expert testimony and, unless that dis-
cretion has been abused or the ruling involves a clear
misconception of the law, the trial court’s decision will
not be disturbed. . . . In determining whether there
has been an abuse of discretion, the ultimate issue is
whether the court could reasonably conclude as it
did. . . .
‘‘[Our Supreme Court] recently articulated the test
for the admission of expert testimony, which is deeply
rooted in common law. Expert testimony should be
admitted when: (1) the witness has a special skill or
knowledge directly applicable to a matter in issue, (2)
that skill or knowledge is not common to the average
person, and (3) the testimony would be helpful to the
court or jury in considering the issues. . . .
‘‘It is well settled that [t]he true test of the admissibil-
ity of [expert] testimony is not whether the subject
matter is common or uncommon, or whether many
persons or few have some knowledge of the matter;
but it is whether the witnesses offered as experts have
any peculiar knowledge or experience, not common to
the world, which renders their opinions founded on
such knowledge or experience any aid to the court or
the jury in determining the questions at issue. . . .
Implicit in this standard is the requirement . . . that
the expert’s knowledge or experience must be directly
applicable to the matter specifically in issue.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Sullivan v. Metro-North Commuter Railroad
Co., 292 Conn. 150, 157–59, 971 A.2d 676 (2009); see
also Conn. Code Evid. § 7-2. ‘‘The essential facts on
which an expert opinion is based are an important con-
sideration in determining the admissibility of the
expert’s opinion.’’ Glaser v. Pullman & Comley, LLC,
88 Conn. App. 615, 624, 871 A.2d 392 (2005).
The issue on appeal is whether Storace’s opinion
improperly was precluded because the average juror
has sufficient knowledge to determine whether the
fence was reasonably safe. The plaintiff alleged in his
complaint that the defendant breached the standard
of care by, inter alia, ‘‘creating and/or maintaining a
hazardous tripping instrument when alternative safer
methods were available.’’ The plaintiff then sought to
introduce Storace’s testimony regarding the various
building codes to demonstrate that the fence was a
‘‘hazardous tripping instrument.’’
The plaintiff argues that Considine v. Waterbury, 279
Conn. 830, 905 A.2d 70 (2006), supports the proposition
that Storace could rely on nonbinding building codes
in rendering his opinion that the defendant breached
the standard of care. In Considine, the plaintiff was
injured by a glass window located next to a door. Id.,833–34. The plaintiff’s expert testified that, according
to the state building code, more durable glass should
have been installed in the window. Id., 855–57. The
subject building, however, was built before the code
was enacted, and the property owner was not required
to change the glass in the window to conform to the
code. Id., 856 n.15. Our Supreme Court concluded that
the court properly admitted the expert’s testimony
regarding the building code as some evidence of the
standard of care, even though the plaintiff was not
required to comply with the code. Id., 867–68.6
In the present case, the plaintiff avers that Storace
should have been allowed to testify that the fence was
unreasonably dangerous based on the industry stan-
dards contained in the building codes. The codes upon
which Storace relied in his report pertain only to the
interior of buildings. The plaintiff argues that, nonethe-
less, Considine supports the proposition that Storace
can testify that the building codes are evidence of the
standard of care regarding the fence in question even
though the fence was not required to conform to the
codes. We disagree. It is significant that the relevant
provision of the building code in Considine was pre-
cisely on point—the building code section governed the
defendant’s window. See id., 856 and n.15. By contrast,
the plaintiff’s expert in the present case relies on code
sections that do not dictate the dimensions of an exte-
rior fence, but govern ‘‘guards’’ inside buildings.7 Fur-
thermore, Storace’s report relied in part on his
determination that the fence at issue and a ‘‘guard’’
share the same purpose, to prevent a fall. Zeyte testified,
however, that the purpose of the fence was not to pre-
vent falls but to prevent people from walking on the
flowers surrounding the unless stone. For these rea-
sons, we agree with the court that the standards set by
the codes upon which the plaintiff’s expert relied are
irrelevant as to whether the outdoor fence in question
was reasonably safe.
Because the building codes were inapplicable, we
conclude that the court did not abuse its discretion in
precluding Storace’s testimony. ‘‘Our Supreme Court
has held that in cases involving questions of science
and skill, or relating to some art or trade, experts are
permitted to give opinions, however, that principle does
not embrace those questions the knowledge of which is
presumed to be common to all men.’’ (Internal quotation
marks omitted.) Mroczek v. Kret, 81 Conn. App. 128,
132–33, 838 A.2d 1012 (2004). If presented with the
proper exhibits and testimony, it is within the court’s
discretion to conclude that the average person pos-
sesses sufficient knowledge to determine whether a
fence is unreasonably dangerous. See id., 134 (within
court’s discretion to conclude person of ordinary expe-
rience could determine whether slope of walkway dan-
gerous when ‘‘jury had the opportunity to assess the
dangerousness of the sloping walkway through photo-
graphs of the area adduced as evidence at trial as well
as through the testimony of the physical characteristics
offered by [the witnesses]’’). The jury in the present
case was presented with photographs of the fence in
question and testimony regarding its physical character-
istics. As a result, the court did not abuse its discretion
in precluding Storace’s testimony because it found that
the jury possessed sufficient knowledge to determine
whether the fence was unreasonably dangerous.8
II
The plaintiff next claims that the court improperly
allowed a lay witness to testify as to her opinion regard-
ing whether the fence was dangerous. On direct exami-
nation, the defendant’s counsel asked Jody Grove, the
assistant director for Camp Jewell, whether she consid-
ered the fence dangerous. The plaintiff’s counsel
objected on the ground of relevancy, and furthermore
noted that Grove was ‘‘not an expert.’’9 The defendant’s
counsel then stated: ‘‘There was plenty of testimony on
this by . . . Zeyte [during the plaintiff’s presentation
of evidence].’’ Thereafter, the court allowed the ques-
tion, and Grove responded that she did not consider
the fence to be dangerous.
We will not reverse a court’s decision to allow lay
witness opinion testimony unless the court has abused
its discretion. State v. Spigarolo, 210 Conn. 359, 371,
556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322,
107 L. Ed. 2d 312 (1989). When considering whether a
court has abused its discretion, ‘‘we make every reason-
able presumption in favor of upholding the trial court’s
ruling, and only upset it for a manifest abuse of discre-
tion.’’ (Internal quotation marks omitted.) Duncan v.
Mill Management Co. of Greenwich, Inc., 308 Conn. 1,
13, 60 A.3d 222 (2013). ‘‘The general rule is that [nonex-
pert] witnesses must state facts and not their individual
opinions, but there are exceptions to this rule as well
established as the rule itself. . . . [T]he opinions of
common observers in regard to common appearances,
facts and conditions have been received as evidence in
a great variety of cases.’’ Sydleman v. Beckwith, 43
Conn. 9, 11 (1875); see also State v. Schaffer, 168 Conn.
309, 318–19, 362 A.2d 893 (1975). Our Supreme Court
has recognized that ‘‘[e]very trial, as a rule, is filled with
so-called opinion evidence from the nonexpert witness.
. . . When such nonexpert opinion evidence will proba-
bly aid the triers in their search for the truth, it meets the
ultimate test of admissibility, and is not to be excluded
because it states the conclusion of the witness based
upon his observation and knowledge.’’ (Citations omit-
ted; internal quotation marks omitted.) MacLaren v.
Bishop, 113 Conn. 312, 314–15, 155 A. 201 (1931); see
also Conn. Code Evid. § 7-1 (‘‘[i]f a witness is not testi-
fying as an expert, the witness may not testify in the
form of an opinion, unless the opinion is rationally
based on the perception of the witness and is helpful
to a clear understanding of the testimony of the witness
or the determination of a fact in issue’’).
At issue is Grove’s opinion that the fence was not
dangerous. ‘‘The elements that enter into the question
of reasonable safety are often numerous and difficult
to describe; and for this reason it has long been the
practice in this state to admit even the opinions of
nonexperts, founded on their own personal knowledge,
and in connection with facts stated by them, upon ques-
tions [regarding] whether a road is or is not in repair,
or whether a bridge is sound and safe. . . . The excep-
tion to the general rule in such cases is grounded on
necessity. . . . The facts are sometimes incapable of
being presented with their proper force and signifi-
canc[e] to any but the observer himself. . . . Under
these circumstances the opinions of witnesses must
of necessity be received.’’ (Citations omitted; internal
quotation marks omitted.) Ryan v. Bristol, 63 Conn.
26, 38, 27 A. 309 (1893). Our courts previously have
admitted lay witness opinion testimony regarding the
safety of common objects that the witness has
observed. Seidel v. Woodbury, 81 Conn. 65, 75, 70 A.
58 (1908) (this jurisdiction ‘‘permit[s] nonexperts to
state an opinion in respect to conditions they have seen
and have described in their testimony’’); see also Lunny
v. Pepe, 116 Conn. 684, 687, 165 A. 552 (1933) (ramp);
Campbell v. New Haven, 78 Conn. 394, 395–96, 62 A.
665 (1905) (sidewalk); Ryan v. Bristol, supra, 38 (road);
Porter v. Pequonnoc Mfg. Co., 17 Conn. 249, 256–57
(1845) (dam).
In light of our precedent allowing lay witnesses to
testify as to their opinion regarding the safety of com-
mon outdoor objects about which they have personal
knowledge, such as roads, sidewalks and ramps, we
conclude that the court did not abuse its discretion in
allowing Grove’s testimony that she did not consider
the fence in question to be dangerous.10 Grove’s opinion
that the fence was not dangerous was based on her
regular observation of the fence and her experience as
an employee of the camp. She testified that, at the time
of the plaintiff’s accident, she was familiar with the
fence in question and walked by it on a regular basis.
Although Grove could have testified to the facts regard-
ing each and every observation and experience that she
had in relation to the fence, due to the number of years
she worked at the camp these accounts would be too
‘‘numerous and difficult to describe; and for this reason
it has long been the practice in this state to admit . . .
the opinions of nonexperts . . . .’’ (Internal quotation
marks omitted.) Ryan v. Bristol, supra, 63 Conn. 38.
We conclude, therefore, that the court did not abuse
its discretion in allowing Grove’s testimony.
Even if the court had abused its discretion in admit-
ting Grove’s testimony, that error was harmless and is
not ground for reversal. An improper evidentiary ruling
will only result in a new trial if the error was harmful
‘‘in the context of the totality of the evidence adduced
at trial.’’ (Internal quotation marks omitted.) Hayes v.
Camel, 283 Conn. 475, 489, 927 A.2d 880 (2007). We must
take into account ‘‘whether the improperly admitted
evidence is merely cumulative of other validly admitted
testimony. . . . The overriding question is whether the
trial court’s improper ruling affected the jury’s percep-
tion of the remaining evidence.’’ (Citations omitted;
internal quotation marks omitted.) Id., 489–90.
During the plaintiff’s direct examination of Zetye,
counsel asked: ‘‘Is there something about this fence to
you that looks like it is going to be dangerous?’’ The
witness responded that there was not. We conclude
that Grove’s testimony was cumulative of Zetye’s
because both camp employees opined that the fence
was not dangerous. Because Grove’s testimony was
cumulative of the plaintiff’s own witness, Zetye, even
if Grove’s testimony improperly was admitted any error
was harmless.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Lisa Czajkowski filed the present action on behalf of her son, Frank
Czajkowski, who was a minor at the time the action was commenced. Lisa
Czajkowski also filed a separate claim for medical and educational expenses
incurred as a result of the alleged negligence, and is a party to this appeal. For
purposes of clarity in this opinion, however, we refer to Frank Czajkowski as
the plaintiff.
2
At oral argument before this court, the plaintiff waived his claim that
the court improperly failed to take judicial notice of or charge the jury on
General Statutes § 19a-420 et seq. governing ‘‘Youth Camps.’’
3
The unless stone is a reference to the Dr. Seuss book, The Lorax. In the
book, a stone engraved with the word ‘‘unless’’ is intended to convey the
message that environmental problems will not improve unless the reader
takes appropriate action.
4
The plaintiff alleged that as a result of the fall he suffered a severe
concussion, a closed head injury, amnesia, as well as mental and verbal
impairment.
5
Cited in Storace’s report was the Connecticut State Building Code, codi-
fied at Regs., Conn. State Agencies § 29-252-1d, as well as The BOCA National
Building Code (11th Ed. 1989), and R. Cote, The Life Safety Code Handbook
(6th Ed. 1994).
6
The building code was used as some evidence of the standard of care
but not to support a negligence per se claim. Considine v. Waterbury, supra,
279 Conn. 867–68.
7
For example, Storace’s opinion was based in part on the State Building
Code, Regs., Conn. State Agencies § 29-252-1d, whose scope is defined as:
‘‘[T]he construction, alteration, movement, enlargement, replacement,
repair, equipment, use and occupancy, location, maintenance, removal and
demolition of every building or structure or any appurtenances connected
or attached to such buildings or structures.’’
8
The plaintiff also claims that the court erroneously required that expert
testimony be based on ‘‘objective standards’’ due to a ‘‘misguided’’ reading
of Mroczek v. Kret, supra, 81 Conn. App. 128. We conclude otherwise. Our
holding in Mroczek did not state than an expert’s testimony must always
be based on ‘‘objective standards.’’ In light of the facts of that case we
specifically held that because the expert’s opinion was not based on any
objective standards, it only rested on ‘‘knowledge . . . within the ken of
the ordinary person.’’ Id., 133. Similarly, the court in the present case deter-
mined that the building codes were inapposite and found that the remainder
of Storace’s testimony was based on knowledge within the ken of the average
person. Accordingly, the court properly relied on Mroczek.
9
On appeal, the plaintiff only pursues the claim that Grove’s testimony
was improper because it was a ‘‘lay opinion.’’
10
The plaintiff also claims that the court erred in allowing Grove to testify
on ‘‘the ultimate issue in the case.’’ We disagree. Section 7-3 (a) of the
Connecticut Code of Evidence prohibits opinion testimony on an ultimate
issue. Our Supreme Court has defined an ultimate issue as ‘‘one that cannot
reasonably be separated from the essence of the matter to be decided [by
the trier of fact].’’ (Internal quotation marks omitted.) State v. Finan, 275
Conn. 60, 66, 881 A.2d 187 (2005). One ultimate issue in this negligence
claim was whether the defendant breached a duty owed to the plaintiff
because, under the circumstances, the employees of the defendant failed
to conduct themselves as reasonable persons. See Considine v. Waterbury,
supra, 279 Conn. 858–59. Grove testified that she did not consider the fence
dangerous, yet whether the fence was dangerous was not an ultimate issue
in this case. Even if the fence had been considered dangerous, arguendo,
the ultimate issue for the jury was how a reasonable person would have
acted under those circumstances. Grove did not offer testimony on this
ultimate issue.